Worker claims dismissal after seeing job advertised
Seeing your job advertised online can be a huge shock, particularly since it may mean your employer is considering dismissing you. It can be extremely debilitating to make such a discovery. But if your job is advertised, does that mean that you have been fired? And if you decide to quit your job, is it a forced resignation?
Many workers may assume that is the case. However, two recent decisions by the Fair Work Commission reveal that advertising a worker’s role while they are still employed does not always amount to a dismissal.
Worker claims forced resignation after seeing job advertised
The general protections case Lisa Dale v Energetic Cleaning Services Pty Ltd [2023] involved a worker who claimed she experienced adverse action from her employer. She argued that she was forced to resign after seeing her job advertised online.
Brisbane-based Lisa Dale started working as a bookkeeper for Energetic Cleaning Services for two days per week on 14 May 2022. From 21 November 2022, she started working in a full-time capacity for five days per week. It was unclear to the Fair Work Commission if Ms Dale was an employee or an independent contractor, as she did not have a written employment contract.
“Could not work with him anymore sorry”
At 6:55 in the morning on 11 July 2023, Ms Dale sent a text message to an Energetic Cleaning Services manager. In reference to the company’s general manager, she had said that she “could not work with him anymore sorry.” Just a day later, Ms Dale noticed that her role at Energetic Cleaning Services was being advertised on employment website Seek.
Ms Dale took this to mean that she had been dismissed and argued as such to the Fair Work Commission. She also said that she could no longer work at Energetic Cleaning Services as she had suffered bullying whilst there. In its defence, the company argued that it had posted the job ad on 11 July 2023 as it had to organise a replacement for Ms Dale if she could no longer continue her role. This was because she had told them that she could no longer work with the general manager.
Employer offered flexible work
Energetic Cleaning Services argued to the Fair Work Commission that it was willing to offer Ms Dale a flexible working arrangement if she could not work with the general manager. The company stated that she could work remotely on some days and work from the office when the general manager was away. Energetic Cleaning Services had also told the general manager “not to liaise with the worker socially.”
It had also told Ms Dale to “be professional and support the general manager like her other coworkers.” Energetic Cleaning Services claimed that when Ms Dale arrived at work the next day, she collected her belongings as she “knew [she] no longer had a job.”
Was it a forced resignation? Fair Work Commission decides.
In cases where an employee alleges forced resignation, it must be proven that they had no other option but to resign. The Fair Work Commission said that it was “not satisfied” that Ms Dale “had no option but to resign.” Her reasoning for resigning – that she was bullied – was not found to be sufficient to warrant resignation. This was because Ms Dale could have availed the Fair Work Commissions “Anti-Bullying jurisdiction” to “resolve the issue” before she resigned.
Did the job ad mean she was dismissed?
The Fair Work Commission found that the job advertisement “did not indicate that the [Ms Dale] was being dismissed. But rather, the ad was “used to find a new employee had [Ms Dale] chosen to resign.” It was also found that there was “no oral or written evidence” to prove that Energetic Cleaning Services had terminated her employment.
The Fair Work Commission stated that “mere dissatisfaction with the employer’s response” does not constitute a dismissal at the initiative of the employer. It was accepted that Ms Dale had voluntarily resigned when she “had taken her belongings and left the employment.” Ms Dale’s general protections claim was therefore rejected.
Constructively dismissed and facebook
The unfair dismissal case Amber McCormick v The Trustee For JJMP1 Trust [2023] involved a worker who claimed she was constructively dismissed after seeing her job advertised on Facebook. Amber McCormick was employed by JJMP1 Trust to manage the Kookaburra Holiday Park in Cardwell, north Queensland. On 19 March 2023, she had conversation with her manager in which she agreed to send a park map to the local council.
The next day, Ms McCormick sent an email to the council. But within half an hour, she received a call from her manager, who started verbally abusing her. A day later on 21 March 2023, she discovered that her role was advertised on Facebook.
Employer claims worker refused to do her job
The owners of the holiday park told the Fair Work Commission why they had advertised the role. Te owners stated said that they were anxious about Ms M “getting big alarm bells ringing” as Ms McCormick was not answering calls from customers. They also said that customers were telling them that there were “a lot of things wrong” with the park.” They were particularly worried about the situation as they lived in Victoria, while the park was in north Queensland.
The park’s owners said that they had attempted two courses of action following these complaints. Firstly, they had tried to get Ms McCormick to perform the tasks she was refusing to do. And secondly, they advertised her role on Facebook. They stated that this course of action was as a backup if “worst comes to the worst.”
Employer warns Ms McCormick about performance
On 22 March 2023, Ms McCormick said that she received an email from the park’s owner stating that “it was clear she no longer wanted to do the job.” It went on to say that they “hoped” she would work for them in the future. However, if Ms McCormick “continued her non cooperative stance,” she would be sacked.
Later that day, the owner texted Ms McCormick a list of concerns he had with her performance. He noted that she did not answer phone calls and refused to manage permanent park residents. Also, that she had refused to manage a tenant’s deceased estate. The owner finished the text by saying that her conduct amounted to “serious misconduct or wilful neglect in [her] employment duties.” Also, that he was willing to speak with Ms McCormick so that they could iron out any issues.
Tensions simmer between worker and owners
For the next month, the relationship between Ms McCormick and the owners deteriorated. The two parties exchanged several emails and texts regarding problems at the park and her refusal to comply with directives.
Finally, on 24 April 2023, Ms McCormick emailed her resignation to the owners. She said that she intended to leave after her three-month notice period elapsed. However, the park’s owners replied saying that they would waive the notice period so she could leave immediately. Ms McCormick did not agree to this waiver, which resulted in further discussions with the owners.
Worker is fired for causing “financial losses of more than $100,000”
The owners eventually decided to postpone the acceptance of Ms McCormick’s resignation after new details about her misconduct came to light. They then sent her an email asking her to respond to a series of allegations. This included a number of problems at the park that the owners alleged she had refused to attend to. The next day on 28 April 2023, Ms McCormick claimed that she could not access her work emails, and therefore could not respond.
A day later, the park’s owners sent her a dismissal letter. In it they claimed that Ms McCormick did not provide an “acceptable response” to the allegations and others raised earlier in the year. And that instead, she had been “argumentative and obstructive.” They stated that they had “no trust or confidence” in Ms McCormick.
The park’s owners said that they did not accept her resignation. Instead, they told Ms McCormick that they were firing her for serious misconduct. They claimed that Ms McCormick’s refusal to do her job had caused the park to incur “financial losses of more than $100,000.” This was in the context of lost revenue compared to the previous year. Ms McCormick subsequently lodged an unfair dismissal application with the Fair Work Commission.
Parties make arguments to Fair Work Commission
Ms McCormick argued to the Fair Work Commission that she had not resigned from her job. And that if she had, she had been constructively dismissed due to the actions of the park’s owners. She claimed that she had “no choice but to resign” due to the “intolerable and untenable environment” at the park. Specifically, the fact that her job had been advertised and all of the threats and allegations made by the owners.
The park’s owners, meanwhile, argued that Ms McCormick had refused to conduct her duties. They said that they had issued numerous warnings to her about her recalcitrance. And that they had provided her with several chances to respond to these warnings, but did not receive a satisfactory reply. The owners detailed a long list of duties that Ms McCormick had failed to undertake. This included answering customer calls, managing park tenants, maintaining the gardens, implementing COVID regulations and conducting repairs.
Fair Work Commission rules on the case
At Ms McCormick’s unfair dismissal hearing, the Fair Work Commission accepted that the park owners had attempted to find a way to get her to perform her duties. And that the job ad was placed as a backup, in case “worst comes to the worst, which subsequently happened.”
It was found that the owners had “reasonable grounds” to believe that McCormick was guilty of serious misconduct. Namely, for committing “theft and serious breaches of occupational health and safety procedures.”
The Fair Work Commission stated that the owners also had a “reasonable basis” to believe that Ms McCormick’s conduct was “willful and deliberate.” Also, that it was “inconsistent with the continuation of the employment contract.” It was also found that her performance was resulting in “serious and imminent risk” to the reputation, viability or profitability of the park. Ms McCormick’s unfair dismissal claim was therefore rejected by the Fair Work Commission.
Conclusion and take a ways
A Whole New Approach can provide the expert guidance needed to make sure your unfair dismissal claim succeeds. AWNA are not lawyers, but the nations leading workplace advisors and commentators. We have helped more than 16,000 employees to take action through the Fair Work Commission. We have an expert understanding of how the Fair Work system. And we know how to use it to hold your employer accountable and seek maximum compensation.
We receive over 120,000 online inquiries each year from every state and territory in Australia. With over three decades of experience, our team is exceptionally well-equipped to navigate the intricacies of your case. Plus, we offer completely free initial consultations to discuss your case and provide you with advice.
Our expert team can help you if you have faced unfair dismissal, a sham redundancy or a forced resignation. Also, if you have suffered from discrimination, sexual harassment or any other violation of your workplace rights. Make sure to act fast, as you only have 21 days from the date of your dismissal to fie a claim with the Fair Work Commission.
Articles similar to: Are you dismissed if your job is advertised?
Serious misconduct a surprising answer in dismissal case
How much is my unfair dismissal claim worth?
